A UK without Convention rights - Freedom or danger?

1. David Anderson Q.C. Bingham Centre for the Rule of Law Human Rights Law Association 16 May 2013 A UK without Convention rights -Freedom or danger?

2. Political impetus • “As our last manifesto promised, the next Conservative government will scrap the Human Rights Act.” • “By 2015 we will need a plan for dealing with the European Court of Human Rights. All options – including leaving the Convention altogether – should be on the table.” Rt Hon Theresa May MP, ConservativeHomeconference,March 2013

3. HRA – the threat • Human Rights Act is used: • Too widely 75% • About right 12% • Not enough 4% • Don’t know 9% (YouGov, 2456 GB adults, March 2011)

4. Media

5. Features of the HRA • A conservative collection of rights • Few controversial higher court decisions (though F (a child) [2010] UKSC 17) • Policy formulation and execution • Dialogue with Strasbourg (Z 2000, Cooper 2003, Kay 2008, al-Khawaja 2011)

6. The Bill of Rights Commission (1) • “Experience to date of the HRA is that a statute expressly protecting basic rights and freedoms can provide a valuable safeguard against .. abuse of power.” • “The Majority are agreed that such a Bill should have at its core the rights currently in the ECHR including those Protocols which the United Kingdom has accepted.” Commission on a Bill of Rights, December 2012, 12.10 – 12.11

7. The Bill of Rights Commission (2) • “Were there to be a UK Bill of Rights, consideration should be given to whether it should contain rights in addition to those in the original Convention.” • “It should contain a similar mechanism to the declaration of incompatibility ..., which we think strikes a sensible balance ...” Commission on a Bill of Rights, December 2012, 12.18, 12.25

8. Leave the Strasbourg system? • Success of the HRA • Delays / backlog in Strasbourg • Commonwealth models • Excessive interference?

9. Excessive interference? • “The Strasbourg court has taken upon itself an extraordinary power to micromanage the legal system of the member states of the Council of Europe (or at any rate those who pay attention to its decisions).” • “There are means by which .. we can repatriate our law of human rights. It is worth a try.” • Lord Hoffmann, foreword to Policy Exchange pamphlet 2011

10. More interventions

11. Vive la différence ...?

12. Judicial acquiescence • “My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now .. is in discerning any coherent basis on which the challenge can be sustained”. R (S) v CC Yorkshire Police [2004] UKHL 39 • “The earlier decision of the House of Lords can no longer stand and the existing scheme must now be recognised to be unlawful – so much, indeed, is clear and conceded.” R (GC) v MPC [2011] UKSC 21

13. Judicial internationalism “The Strasbourg court’s approach to problems posed by the Convention .. is to provide principled solutions that are universally applicable in all the contracting states. ... There is no room in its jurisprudence for, as it were, one rule for the countries in Eastern Europe such as Turkey on the one hand and those on its western fringes such as Scotland on the other.” Cadder v HM Advocate [2010] UKSC 43, per Lord Hope at §40

14. Political resistance • “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” ECHR, Art 46 • “No one should be under any doubt – prisoners are not getting the vote under this Parliament.” The Prime Minister, October 2012

15. ECtHR - vehicle for our values? • “Are we really limiting human rights abuses in other countries? I’m sceptical.” Rt. Hon. Theresa May, March 2013 • “It is significantly more difficult for us to fight for universal human rights in our country if your country publicly walks away from the same universal human rights.” HossamBaghat, Tahrir Square veteran, cited by Liberty 2011.